H-1B Visas - U.S. Professional Work Visas

U.S. corporations use the H-1B visa program in order to employ foreign workers in occupations that require a specialized body of theoretical or technical knowledge, such as computer programmers, engineers, and scientists.Our immigration law office has over 25 years of experience preparing visas such as the H-1B visa. Contact us to learn more about our track record of success with H-1B visas.

H-1B Visa Requirements

  • You must have a bachelor’s degree or its equivalent at minimum in order to enter
  • The degree that you have must be related to the field and position that you wish to obtain, or the position must be so complex that it requires a worker with a bachelors degree
  • The employer must require such a degree or its equivalent for the position sought after
  • The work related to the position must be complex that it requires an individual with a bachelors degree or higher

Education Requirements

  • You must either have completed a U.S. bachelor’s degree or higher from an accredited college or university;
  • Or have a foreign degree that is the equivalent to a U.S. bachelors degree or higher;
  • Or you must hold a license or have certification to practice the specialty occupation that is related to the prospective position wanted;
  • Or you must have the education or training that is equivalent to a U.S. bachelors degree or higher, and have the sufficient expertise in the field that is required to the position wanted for the visa
  • Please Note that the education or training that you have must be related to the position wanted for the visa. You must show expertise or knowledge in the field, and show that such a position needs

Requirements for the Employer

  • The employer must file an approved Form ETA-9035 Labor Condition Application (LCA)
  • This must be filed with the I-129 (Petition for Nonimmigrant Worker)

H-1B2 Department of Defense Researcher and Development Project Worker Requirements

  • This visa is for immigrants who come to the United States to perform exceptional services related to a cooperative research project administered by the U.S. Department of Defense
  • A bachelors degree or higher is needed in order to qualify for this visa

In addition to the requirements above, the immigrant must:

  • You must either have completed a U.S. bachelor’s degree or higher from an accredited college or university;
  • Or have a foreign degree that is the equivalent to a U.S. bachelors degree or higher;
  • Or you must hold a license or have certification to practice the specialty occupation that is related to the prospective position wanted;
  • Or you must have the education or training that is equivalent to a U.S. bachelors degree or higher, and have the sufficient expertise in the field that is required to the position wanted for the visa
  • Please Note that the education or training that you have must be related to the position wanted for the visa. You must show expertise or knowledge in the field, and show that such a position needs

H-1B3 Fashion Model Visa Requirements

  • The position offered must require an experienced and well known fashion model
  • You must be a prominent fashion model with recognized experience in the field
  • A Labor Condition Application is required for this visa. The employer must file an I-129 alongside the Labor Condition Application

How does the USCIS determine whether or not an H-1B Petition is Subject to the annual cap?

The USCIS uses the information contained in Part C, I-129 pages 14-15, in order to determine whether or not the petition is subject to the 65,000 annual H-1B cap (numerical limitation for H-1B visas). However, some petitions are exempt from the annual cap, under the advanced degree exemption which is provided to the first 20, 000 petitions filed for an individual who has obtained a U.S. masters degree or higher.

Cap Amounts

The annual limit of H-1B visas issued is 65,000. Not all H-1B immigrants, however, are subject to this annual cap. In addition, up to 6,800 visas may be set aside from the annual 65,000 cap during each year for the H-1B1 program, implemented by legislation on the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Any unused visas from this 6,800 are later made available for H-1B use during the next year.

The fist 20,000 H-1B beneficiaries that have earned a masters degree or higher from a U.S. university or institute of higher education, are not subject to the annual cap, however, after those 20,000 slots are filled, the USCIS must count those cases against the annual cap (included in the 65,000 annual limit).

Other Numerical Cap Exemptions

H-1B nonimmigrants who are employed or have received offer of employment from institutions of higher learning, or a related or affiliated nonprofit entity, as well as those who are employed by nonprofit research organizations or government research organizations, are exempt from the cap. In addition, H-1B renewals are not included in the cap.

Common H-1B Specialty Occupations

  • Doctors
  • Scientists
  • Architects
  • Market Research Analysts
  • Management Consultants
  • Engineers
  • Computer Analysts
  • Research Scientists/Professors

H-1B Education Requirement: Evaluation of Foreign Degrees

Foreign Degrees must be analyzed and evaluated in terms of its equivalency to a U.S. university degree, before completing the H-1B visa Petition. On such organization that evaluates foreign degrees can be found on http://www.jsilney.com.

Applying for Permanent Residency while under H-1B Status

The 1990 U.S. Immigration Act exempts those under H-1B status from showing that they did or did not intend to immigrate to the U.S. at the time that they applied for their first H-1B temporary work visa, or renewal. This means that those under H-1B status can successfully and easily renew their H-1B visa after they applied for permanent residency (Green Card). This is a great advantage in comparison to other visas, in which the USCIS will often deny renewals due to conflicting interests of the immigrant. Once an immigrant applies for a green card, the USCIS and U.S. authorities will believe that the alien’s intent is to permanently remain in the United States.

Labor Certification

The I-129 petition that is filed for H-1B visas must be filed along with the certified Labor Condition Application (LCA). The U.S. employer must show that the salary offered to the nonimmigrant worker is at least equal to the prevailing wage in the area of intended employment. If the U.S. employer intends for the nonimmigrant worker to work in multiple locations, then Labor Condition Applications must be provided for each of the employment locations. The Labor Certification Applications must be filed online through the Labor Department’s “iCert” system. The processing time for such Labor Condition Applications is one week.

USCIS Fees for H-1B Visas

Data Collection Fee:

A fee of 1,500 USD is required for companies with over 25 employees, while a fee of 750 USD is required for companies with no more than 25 employees. H-1B petitions that are filed by institutions of higher learning and or governmental research organizations, are exempt from the 1,500 USD and 750 USD Data collection fees.

Fraud Prevention and Detection Fee

  • $500 USD. Other than petitions to extend the stay or amend the stay, there are no exemptions from this fee 

I-129 Petition Fee for H-1B Visa:

  • $320 USD

H-1B Visa Frequently Asked Questions

Can I legally remain in the United States if I have recently been fired while on H-1B status?

You can legally remain in the United States if you file the I-539 Application to Extend/Change Nonimmigrant Status. Once you file your I-539 you will receive a text message or email notification stating that your form has been accepted at a USCIS facility. Once you receive this message, you should complete the G-1145 E-Notification of Application/Petition Acceptance and attach this to the first page of your application. The filing fee is $290. At the discretion of the USCIS, you may be granted another nonimmigrant visa status. In order to increase your chances of being granted another nonimmigrant visa status, apply for the change of status and file the I-539 within 10 days of being fired from your previous position.

What are the new H-1B displacement and no lay-off rules?

  1. The employer must demonstrate that he did not displace a U.S. worker employed by the employer within 90 days before and 90days after the filing of the H-1B petition/application, in accordance with the Labor Condition Application (LCA).
  2. The employer must demonstrate that they he or she will not place the new H-1B worker with another employer. The new H-1B worker cannot be placed where employment relationships exist with another employer, unless the first employer has no knowledge of the second employer displacing a U.S. worker.

What are the time restrictions and limitations of the H-1B visa?

The temporary nature of the H-1B visa prohibits the worker from permanently remaining in the United States. Individuals with the H-1B visa do not need to maintain a foreign residence. Individuals with this visa may file a petition for Lawful Permanent Residence. If this is denied, the H-1B visa holder must return to their country of residence at the end of the employment period.

Does the H-1B Cap apply to those seeking extensions or change of employer?

The H-1B cap of 65, 000 visas applies only to new visas. However, this does not include H-1B Visa status holders who wish to change employers or seek extensions.  

What is a Specialty Occupation?

A specialty occupation, in relation to the H-1B visa refers to an occupation that requires specialized knowledge, which only the potential immigrant can perform. Please note that a bachelor’s degree or its equivalent is required in order to qualify for this visa.

How do I qualify for an H-1B visa?

  • You must show that you have the specialized knowledge required by the specialty occupation in which you wish to obtain
  • You must be coming to the United States for purposes of earning money in a professional setting, and show that you are not coming to the United States for reasons such as humanitarian service, leisure, etc.
  • You must be seeking temporary entry to the United States
  • You must have at least a bachelor’s degree or its equivalent. Degrees from foreign universities must be evaluated to its equivalency in the United States. On occasion, 3 years of work experience may be sufficient for each year of University education that is missing. This is at the discretion of the USCIS.

What does my U.S. employer need to do to sponsor me for the H-1B visa?

  • The U.S. employer must file Labor Condition Attestation (Form ETA-9035) through the United States Department of Labor on their online website:  http://www.icert.doleta.gov

Through this process, the U.S. Company assures that it will provide a reasonable salary to the immigrant worker, and will provide the immigrant worker with equal benefits compared to a U.S. employee.

  • In addition, the U.S. Company must also file the Form I-129, the Petition for Nonimmigrant Worker along with the necessary H Supplement. The approved Labor Certification Application (LCA) must be included, and should be submitted to the USCIS Regional Service Center that covers the city in which the immigrant intends to be employed. Upon approval, the Form I-797 is sent out to the U.S. employer, and a copy is sent to the American Consulate.

What are the benefits of the H-1B visa?

  • Generally speaking, there are no limits to the number of H-1B visas that one can obtain in their lifetime
  • Green Card privilege: While under H-1B status, you can apply for Lawful permanent Residency or a Green Card for yourself and your family (wife and dependents)
  • Early Dismissal: If you are fired by your employer before the end of the authorized employment period, the employer, by sponsoring you for the visa, has agreed to pay the immigrant a reasonable fee for transportation back to your home country. If fired from by your employer, you may seek a change of status and apply for another visa.

If I am fired by my employer under H-1B status and apply for another H-1B visa, does this renew the 6 year allowed time of stay?

If you apply for another H-1B visa, after being fired from a previous employer, you are not given an additional 6 years from the approval date. Since you are allowed to stay in the United States for duration of 6 years, you may stay until you have been in the United States for 6 years in total, regardless of whether you obtained a new H-1B visa.

How long can I stay in the U.S. with an H1B visa?

H-1B visas are usually granted for three years. H-1B visas, however, can be extended for another 3 years, totaling in 6 years.  After the 6 year period ends, you can apply for a new H-1B visa after you have been outside of the United States for at least one year. In order to avoid such a disruption, if you acquire a Green Card within the time period that you are in the United States under the H1-B visa, you do not need to leave the country for a year.

If you have a pending Green Card application, you may be granted an extension.

Can I bring my spouse and children with me while on H1B status?

H-4 visas are given to your spouse and any of your dependent children under 21 years of age. Your spouse and children cannot accept employment under the H-4 visa. Your dependents, however, are allowed to attend school in the United States. In addition, you may bring any servants under B-1 visa status.

Written by:Mark Carmel